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Nos. 09-3388, 09-3389 in the United States Court Of Case: 09-3388 Document: 003110376454 Page: 1 Date Filed: 12/10/2010 NOS. 09-3388, 09-3389 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, Appellant/Cross-Appellee v. VINCENT J. FUMO, Appellee/Cross-Appellant APPEALS FROM JUDGMENTS OF CONVICTION AND SENTENCE IN CRIMINAL NO. 06-319-03 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SECOND-STEP BRIEF OF APPELLEE/CROSS-APPELLANT VINCENT J. FUMO SAMUEL J. BUFFONE BuckleySandler LLP 1250 24th St NW Ste 700 Washington, DC 20037 (202) 349-7940 PETER GOLDBERGER 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 Attorneys for Vincent J. Fumo Case: 09-3388 Document: 003110376454 Page: 2 Date Filed: 12/10/2010 TABLE OF CONTENTS Table of Authorities .........................................................................................................................v Statement of Jurisdiction..................................................................................................................1 Statement of the Issues.....................................................................................................................2 Statement of Related Cases and Proceedings ..................................................................................6 Statement of the Case.......................................................................................................................7 A. The Course of Proceedings. .....................................................................................7 B. Statement of Facts....................................................................................................8 1. Senator Fumo’s service in the Pennsylvania Senate....................................9 2. The work of Citizens Alliance for Better Neighborhoods.........................11 3. The Investigation and Indictment. .............................................................12 4. The Trial.....................................................................................................13 5. Fumo’s Motion for A New Trial................................................................15 6. Sentencing..................................................................................................16 Summary of Argument ..................................................................................................................22 Argument .......................................................................................................................................27 I. The district court’s § 2B1.1. fraud loss calculation was reasonable and based on well-supported findings of fact; minor computational errors were inconsequential because they did not alter the applicable loss-adjustment and therefore did not alter the advisory Guideline sentencing range.....................31 A. Standard of review. ....................................................................................32 B. Judge Buckwalter’s reasonable estimate of loss is supported by factual findings that command great deference on appeal.........................33 C. Minor computational errors made while estimating fraud loss were harmless and do not trigger remand because they did not affect the fraud loss adjustment under U.S.S.G. § 2B1.1(b)(1) and, in turn, did not alter the applicable advisory sentencing range. .............................48 i Case: 09-3388 Document: 003110376454 Page: 3 Date Filed: 12/10/2010 II. The district court made a reasonable determination that the Government did not meet its burden in proving facts sufficient to trigger sentence enhancements for sophisticated means and misrepresenting affiliation with a charitable organization........................................................................................53 A. Standard of review. ....................................................................................53 B. The district court did not clearly err in rejecting the sophisticated means sentence enhancement. ...................................................................54 C. The district court did not clearly err in refusing to add a charitable organization sentence enhancement...........................................................57 III. The downward departure for Fumo’s good works proceeded on legally permissible grounds and was fully supported by a well-developed factual record; the Government’s challenge to the district court’s departure determination is not only waived but also fails on the merits................................60 A. Standard of review. ....................................................................................61 B. The record below makes clear that the district court granted a downward departure for good works and not a variance...........................62 C. There was a sound legal basis for the good works departure. ...................69 D. The factual record amply supported the downward departure...................73 IV. There was no need for the district court to recalculate an advisory Guidelines sentencing range post-departure and select a sentence from within that recalculated range; it was sufficient for the district court to depart downward to a specific sentence.................................................................85 A. Standard of review. ....................................................................................86 B. The district court’s procedure was not erroneous......................................86 C. The absence of any rule or precedent that affirmatively compels what, in this case, amounted to a superfluous intermediary calculation precludes a finding that any error in this regard was plain or obvious..........................................................................................90 D. No evidence suggests that the sentence ultimately imposed would have been any different had the district court articulated its departure determination in terms of levels and then selected a sentence after recalculating an advisory Guidelines range instead of departing directly to a specific sentence................................................91 ii Case: 09-3388 Document: 003110376454 Page: 4 Date Filed: 12/10/2010 V. Judge Buckwalter duly considered the advisory sentencing Guideline range, the prohibition of unwarranted sentencing disparity, and each of the Government’s sentencing-related arguments when he examined the sentencing factors under 18 U.S.C. § 3553(a). ......................................................93 A. Standard of review. ....................................................................................93 B. Judge Buckwalter acknowledged the Guideline recommendation. ...........94 C. Judge Buckwalter addressed the need to avoid unwarranted sentencing disparity. ..................................................................................95 D. The record demonstrates that Judge Buckwalter gave aggravating factor and upward variance arguments due consideration.........................95 VI. Fumo was denied his Constitutional right to trial by an impartial jury. ..............100 A. Standard of review ...................................................................................102 B. The jury was exposed to extraneous influences.......................................102 C. The district court’s refusal to hold an evidentiary hearing regarding jury taint violated Fumo’s Constitutional right to an impartial jury........110 D. The district court’s refusal to grant a new trial once it assumed as true that there was jury taint violated Fumo’s Constitutional right to an impartial jury...................................................................................120 E. Fumo’s Constitutional rights to confrontation and counsel were also violated. ............................................................................................137 F. The district court failed to take appropriate cautionary measures to protect the impartiality of the jury. ..........................................................139 G. The district court’s response to juror Wuest’s misconduct was inadequate. ...............................................................................................140 VII. The trial was rendered fundamentally unfair by the introduction of highly prejudicial evidence of uncharged criminal violations of the State Ethics Act........................................................................................................................146 A. Standard of review. ..................................................................................146 B. Pre-trial the court accepted the Government’s position that the Ethics Act was relevant only for a limited purpose. ................................146 C. At trial the Government introduced improper evidence regarding conflicts of interest under the Ethics Act.................................................150 iii Case: 09-3388 Document: 003110376454 Page: 5 Date Filed: 12/10/2010 D. The presentation of evidence regarding alleged violations of the Ethics Act deprived Fumo of his right to a fair trial................................154 VIII. The sentencing court erred in adding pre-judgment interest to the restitution amount. ...............................................................................................163 A. Standard of review. ..................................................................................164 B. Pre-judgment interest on restitution is not authorized by
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